This is an appeal from a final judgment of the Superior Court, Chancery Division, in a vendor's action for specific performance of a contract for the sale of real estate. The trial court dismissed the complaint and ordered the return of the deposit money to the vendees on their counterclaim.

The basic facts are not in dispute. In May, 1949, the plaintiff, Coolidge & Sickler, Inc., was foreclosing a mortgage it held on premises owned by Charles Cornaglia and Pauline, his wife, consisting of a two-story combined grocery store and dwelling with a garage. The defendant, Mary K. Regn, was quite familiar with the property and interested in its purchase. She was interviewed by the mortgagors (the Cornaglias) who asked $4,000 over the mortgage debt (or a total of $12,000) for the conveyance. She consulted a real estate broker, a Mr. Fanelli, who had the property for sale and through whom she believed it could be purchased at a lower figure. On June 3, 1949, Mr. Fanelli wrote to the plaintiff offering $8,000 for the real estate and enclosed a check in the sum of $200 as a deposit upon the condition that the fixtures pertaining to the building were included in the sale. Plaintiff replied on June 6, 1949, accepting the offer on the above terms subject to its securing title to the property at the sheriff's sale under the pending foreclosure.

The plaintiff, having bid in the property at the sheriff's sale on June 17, 1949, prepared a written contract of sale which was mailed to the real estate agent for defendants' signatures. The defendants made a further payment of $800 on the execution of the instrument. Passing of title was fixed for August 23, 1949, with a proviso that in the event the former owners, who had remained on the property after the foreclosure sale, had not vacated by that time, the closing date would be extended 30 days; viz., to September 22, 1949. It was not until August 29, 1949, that the tenants (the Cornaglias) were evicted by the sheriff under a writ of possession, and by reason of such delay, the thirty-day

extension period went into effect under the provisions of the agreement of sale.

The day after the Cornaglias had been removed, Mrs. Regn inspected the premises and complained of its condition to Mr. Fanelli. An examination of the property on August 31, 1949, in the presence of Mr. Coolidge, president of the plaintiff corporation, disclosed that the property had been thoroughly vandalized. Plaintiff concedes that the Cornaglias committed all the acts of vandalism just prior to their eviction. The investigation disclosed that the electric light fixtures in the bathroom, kitchen and store were gone. The kitchen range, sink and cabinets were missing as well as certain fixtures in the bathroom. Considerable damage had been inflicted in the store as well. The insulation of a "walk-in" ice-box had been chopped off, holes punched in the cinder blocks and the heavy door removed. The plaster on the outside wall had been entirely destroyed. There were holes in the floor of the store, the shelves and show cases were missing, and a partition had been removed which caused the upper floor to sag. In the cellar the heating pipes were missing as were the fittings of the electric pump for the well (which was the only water supply), the fuse box had been damaged, the cesspool littered with debris and a large part of the shingles on one side of the garage had been torn off. The premises were also seriously damaged in other respects.

The primary question presented on this appeal is whether the trial court properly interpreted the contract of sale as placing the loss due to vandalism occurring subsequent to the execution of the contract upon the plaintiff vendor. The pertinent provisions of the agreement read as follows:

"4. * * * the premises shall be conveyed in the same condition as the same now are, reasonable wear and tear excepted.

9. This agreement includes all fixtures permanently attached to the building or buildings herein described, and appurtenances; also specifically includes the following items:

9a. It is understood and agreed that there is erected on the premises covered by your agreement, a one car ...

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